Failure to File Appeal IAC Per Se

U.S. v. Palermo, 2006 WL 895493 (4/7/06)(unpub'd) - The 10th remanded a 2255 motion for an evidentiary hearing. The movant asserted he asked his attorney to file an appeal and the attorney did not do so. The d.ct. was wrong to find that claim unbelievable based on the factors noted by the S.Ct. in Roe v. Flores-Ortega, 528 U.S. 470 (2000). Those factors are only relevant when the claim is the attorney didn't consult with the defendant about whether to appeal. When the defendant wants an appeal and the attorney doesn't appeal, the attorney has been ineffective and the defendant is entitled to relief, period.